Muhammed Abdullah v. U.S. Security Associates, Inc. , 731 F.3d 952 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MUHAMMED ABDULLAH, as an No. 11-55653
individual and on behalf of all others
similarly situated, D.C. No.
Plaintiff-Appellee, 2:09-cv-09554-
GHK-E
v.
U.S. SECURITY ASSOCIATES, INC., a OPINION
corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted
March 7, 2013—Pasadena, California
Filed September 27, 2013
Before: Richard A. Paez and Paul J. Watford, Circuit
Judges, and Leslie E. Kobayashi, District Judge.*
Opinion by Judge Paez
*
The Honorable Leslie E. Kobayashi, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
2 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
SUMMARY**
Class Certification
The panel affirmed the district court’s order under Fed. R.
Civ. P. 23 certifying a class of former and current employees
of U.S. Security Associates, Inc., who allege that the
company committed numerous violations of California labor
law.
The panel held that the district court did not abuse its
discretion by certifying a meal break sub-class, defined as all
past and present employees who worked more than six hours
and were not provided a meal break and who were not
compensated for the meal break. The panel held that under
California law the plaintiffs’ claims will yield a common
answer that is “apt to drive the resolution of the litigation,” as
required by Fed. R. Civ. P. 23(a)(2). The panel also held that
common issues of law or fact would predominate, and
plaintiffs’ claims “will prevail or fail in unison,” as required
by Fed. R. Civ. P. 23(b)(3).
COUNSEL
Robert J. Stumpf, Jr. (argued), San Francisco, California; Otis
McGee, Jr., Ross A. Boughton, Morgan P. Forsey, and
Lauren D. Thibodeaux, Sheppard, Mullin, Richter &
Hampton LLP, Los Angeles, California, for Defendant-
Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 3
Kenneth H. Yoon (argued), Los Angeles, California; Peter M.
Hart and Amber S. Healy, Los Angeles, California, for
Plaintiff-Appellee.
OPINION
PAEZ, Circuit Judge:
The district court certified a class of former and current
employees of U.S. Security Associates, Inc. (“USSA”), who
allege that USSA committed numerous violations of
California labor law. USSA filed a petition to appeal the
district court’s certification order, which we granted. See
Fed. R. Civ. P. 23(f). On appeal, USSA argues that the court
erred in certifying the meal break sub-class, because the
plaintiffs failed to establish “questions of law or fact common
to the class” that “predominate” over questions affecting only
individual members. Fed. R. Civ. P. 23(a)(2), (b)(3). We
hold that the district court did not abuse its discretion by
certifying the meal break sub-class. Accordingly, we affirm.
I. BACKGROUND
A.
Plaintiff Muhammed Abdullah is a former employee of
USSA, a private security guard company.1 USSA provides
guards at over 700 locations in California, including hotels,
1
In addition to Abdullah, the second amended complaint names three
additional plaintiffs: Melissa Robinson, Christina Aguilar, and William
Kimbrough. All four were employees of USSA for some period of time
between 2007 and 2009.
4 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
hospitals, warehouses, and construction sites, among other
locations. In addition to standing guard at such locations,
USSA’s employees may perform a range of other duties, such
as inspecting vehicles, patrolling properties, reacting to
patient emergencies, clearing off railroad tracks, and
recording damage to vehicles, among many other tasks. A
large majority of USSA’s employees in California work at
“single post” locations, meaning that no other guards are on
duty at the same time.2
As a condition of employment, all of USSA’s employees
are required to sign “on-duty meal period agreements.” The
record contains two versions of such agreements. The first,
which was used prior to 2007, provides:
Due to the nature of the work I perform as a
Security Guard, and due to the nature of the
services provided by U.S. Security Associates,
Inc., I understand that my work prevents me
from being relieved of all duty during my
meal period. I am voluntarily agreeing to
have my daily meal period “on duty.” I
understand that I will be paid at my regular
rate of pay for my on duty meal period. I
understand that, if I elect to revoke this
agreement, I may do so at any time, provided
my revocation is in writing.
2
USSA’s “person most knowledgeable,” Leo J. Flury (“Flury”), initially
testified at his deposition that 99.9% of employees work at single guard
posts. He later changed his answer to say that “a large majority” of
employees work at such posts.
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 5
The second, which USSA has used since mid-2007, provides:
Due to the nature of the work I perform as a
Security Guard, and due to the nature of the
services provided by U.S. Security Associates,
Inc., I understand that I may be prevented
from being relieved of duty during my meal
period. On this basis, I voluntarily agree to
have an “on-duty” meal period that shall be
counted as time worked and compensated by
U.S. Security Associates, Inc.
After five (5) hours worked, the following waiver
becomes relevant:
Pursuant to paragraph 13 of Wage Order No.
4-2001 of the California Industrial Welfare
Commission, Employee and Employer, as
evidenced by their respective signatures
below, hereby mutually agree to waive the
right to an off-duty meal period for any hours
worked in excess of five (5) total hours in a
workday.
I understand that I may revoke this agreement
at anytime in writing, and such revocation
shall be presented to my Supervisor or
Operations Manager at the beginning of the
shift on which I first desire to revoke the
agreement. I am voluntarily signing this
agreement.
Flury testified that if an employee refuses to sign the “on-
duty meal period agreement,” he or she “won’t work for us.”
6 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
He further testified that one of the “requirements” of the job,
as evidenced by the meal-period “waiver,” was for USSA
employees to eat meals on the job.
B.
The plaintiffs sought to maintain a class action on behalf
of themselves and all others similarly situated, alleging that
USSA committed numerous violations of California labor
laws, including, inter alia, requiring them to work through
their meal periods. Of note here, they allege that USSA has
a “policy of requiring employees to work through their
legally mandated meal periods,” and is therefore liable for
“paying premium compensation for missed meal periods . . .
pursuant to California Labor Code § 226.7 and the applicable
[Industrial Welfare Commission] Wage Order.”3
The district court certified the class and seven sub-classes,
pursuant to Rule 23(b)(3). One of the sub-classes is the meal
break sub-class, which is defined as:
A Subclass of all of Defendant’s past and
present California Security Guard/Officer
employees who worked more than six hours
and were not provided a checked-out meal
break in any work shift from July 1, 2007
through the present, and who were not
compensated for such on-duty meal break(s)
pursuant to California Labor Code § 226.7(b).
3
The plaintiffs filed their initial complaint in the California Superior
Court, and USSA removed the case to federal court pursuant to the Class
Action Fairness Act. See 28 U.S.C. § 1332(d).
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 7
The district court determined that certifying this sub-class
was appropriate, “[g]iven [USSA’s] uniform policy of
requiring the putative subclass members to sign the on-duty
meal break agreement,” as well as the “evidence that, in the
vast majority of cases, this policy was implemented to require
on-duty meal breaks be taken.” A few months later, the court
reached the same conclusion in an order denying USSA’s
motion for reconsideration. Having been granted leave to
appeal, USSA challenges the district court’s certification of
the meal break sub-class on the grounds that the plaintiffs
have not established “commonality,” as required under
Federal Rule of Civil Procedure 23(a)(2), or “predominance,”
as required under Rule 23(b)(3).
II. STANDARD OF REVIEW
We review a district court’s decision to certify a class
under Rule 23 for abuse of discretion. In re Wells Fargo
Home Mortg. Overtime Pay Litig., 571 F.3d 953, 957 (9th
Cir. 2009) (hereinafter “In re Wells Fargo”). “When
reviewing a grant of class certification, we accord the district
court noticeably more deference than when we review a
denial of class certification.” Wolin v. Jaguar Land Rover N.
Am., LLC, 617 F.3d 1168, 1171 (9th Cir. 2010) (quoting In re
Salomon Analyst Metromedia Litig., 544 F.3d 474, 480 (2d
Cir. 2008)) (internal quotation marks omitted). A district
court abuses its discretion if it (1) relies on an improper
factor, (2) omits a substantial factor, or (3) commits a clear
error of judgment in weighing the correct mix of factors. In
re Wells Fargo, 571 F.3d at 957. In addition, an error of law
is a per se abuse of discretion. Yokoyama v. Midland Nat.
Life Ins. Co., 594 F.3d 1087, 1091 (9th Cir. 2010). We
review the district court’s findings of fact under the clearly
erroneous standard, meaning we will reverse them only if
8 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
they are (1) illogical, (2) implausible, or (3) without “support
in inferences that may be drawn from the record.” United
States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009).
III. ANALYSIS
We are concerned here with two overlapping
requirements for class certification. First, a party seeking
class certification must always show that “there are questions
of law or fact common to the class.” Fed. R. Civ. P.
23(a)(2).4 Second, “the proposed class must satisfy at least
one of the three requirements listed in Rule 23(b).” Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2548 (2011); see also
Fed. R. Civ. P. 23(b). Here, the plaintiffs seek certification
under Rule 23(b)(3), which requires, inter alia, that “the
questions of law or fact common to class members
predominate over any questions affecting only individual
members.” Fed. R. Civ. P. 23(b)(3). Thus, “Rule 23(a)(2)
asks whether there are issues common to the class,” and
“Rule 23(b)(3) asks whether these common questions
predominate.” Wolin, 617 F.3d at 1172. We begin our
analysis by considering whether the plaintiffs have satisfied
Rule 23(a)(2), keeping in mind that this analysis is also
relevant to Rule 23(b)(3). See id. (noting the “substantial
4
This requirement, known as the “commonality” requirement, is one of
the four familiar requirements of Rule 23(a): the party seeking class
certification must show that “(1) the class is so numerous that joinder of
all members is impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect the interests of the
class.” Fed. R. Civ. P. 23(a). USSA does not challenge the district court’s
determination that the meal break sub-class satisfies Rule 23(a)(1), (3),
and (4).
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 9
overlap between the two tests”). We then turn to Rule
23(b)(3). Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019
(9th Cir. 1998) (explaining that the requirements of Rule
23(a)(2) are “less rigorous than the companion requirements
of Rule 23(b)(3)”).
A. Rule 23(a)(2)
“The Supreme Court has recently emphasized that
commonality requires that the class members’ claims ‘depend
upon a common contention’ such that ‘determination of its
truth or falsity will resolve an issue that is central to the
validity of each claim in one stroke.’” Mazza v. Am. Honda
Motor Co., 666 F.3d 581, 588 (9th Cir. 2012) (quoting Wal-
Mart, 131 S. Ct. at 2551) (internal alteration omitted). Put
another way, the key inquiry is not whether the plaintiffs have
raised common questions, “even in droves,” but rather,
whether class treatment will “generate common answers apt
to drive the resolution of the litigation.” Wal-Mart, 131 S. Ct.
at 2551 (quoting Richard A. Nagareda, Class Certification in
the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132
(2009)) (emphasis added) (internal quotation marks and
alteration omitted). This does not, however, mean that every
question of law or fact must be common to the class; all that
Rule 23(a)(2) requires is “a single significant question of law
or fact.” Mazza, 666 F.3d at 589 (emphasis added); see also
Meyer v. Portfolio Recovery Assocs., 707 F.3d 1036, 1041–42
(9th Cir. 2012), cert. denied, 133 S. Ct. 2361 (2013).
Here, the district court concluded that “a common legal
question that is presented and susceptible to class-wide
determination” is whether California’s “nature of the work”
exception to Industrial Welfare Commission (“IWC”) wage
order No. 4-2001 (“Wage Order No. 4-2001”)—which
10 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
governs meal periods—“applies to [USSA]’s single guard
post staffing model.”5 USSA counters that this question will
not generate a common answer, because USSA’s “nature of
the work” defense requires “an individualized, fact-specific
analysis” of each employee’s work history, including “a day-
by-day examination of an employee’s job duties.” We
therefore begin our Rule 23(a)(2) analysis by looking to state
law to determine whether the plaintiffs’ claims—and USSA’s
affirmative defenses—can yield a common answer that is “apt
to drive the resolution of the litigation.” Wal-Mart, 131 S. Ct.
at 2551; see also Amgen Inc. v. Connecticut Ret. Plans &
Trust Funds, 133 S. Ct. 1184, 1194–95 (2013) (“Merits
questions may be considered to the extent—but only to the
extent—that they are relevant to determining whether the
Rule 23 prerequisites for class certification are satisfied.”).
We conclude that they can.
1.
Under California law, an employer may not “require any
employee to work during any meal . . . period mandated by an
applicable order of the Industrial Welfare Commission.” Cal.
Lab. Code § 226.7(a).6 Wage Order No. 4-2001, in turn,
guarantees certain employees a 30-minute meal period for
5
Wage Order No. 4-2001 regulates the wages, hours, and working
conditions for “professional, technical, clerical, mechanical, and similar
occupations.” Cal. Code Regs., tit. 8, § 11040.
6
If the employer does so, it “shall pay the employee one additional hour
of pay at the employee’s regular rate of compensation for each work day
that the meal or rest period is not provided.” Cal. Lab. Code § 226.7(b);
see also Cal. Code Regs., tit. 8, § 11040, subd. 11(B).
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 11
every five hours of work.7 Cal. Code Regs., tit. 8, § 11040,
subd. 11(A); see also Cal. Lab. Code § 512(a) (“An employer
may not employ an employee for a work period of more than
five hours per day without providing the employee with a
meal period of not less than 30 minutes.”). The employee
must be “relieved of all duty” during this break; if not, the
meal period is considered “on-duty,” and counts as time
worked. The following three conditions apply to “on-duty”
meal periods:
An “on duty” meal period shall be permitted
only when the nature of the work prevents an
employee from being relieved of all duty and
when by written agreement between the
parties an on-the-job paid meal period is
agreed to. The written agreement shall state
that the employee may, in writing, revoke the
agreement at any time.
Cal. Code Regs., tit. 8, § 11040, subd. 11(A). The parties do
not dispute that the putative class members all signed a
written agreement which provided that it could be revoked;
their disagreement turns on whether USSA can defeat class
certification by invoking the “nature of the work” exception
to the off-duty meal period requirement. We first consider
the substantive scope of duties that may qualify for the
“nature of the work” exception, and we then consider two
recent state court decisions addressing policies similar to the
one in this case.
7
“The IWC’s wage orders are to be accorded the same dignity as
statutes.” Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 527 (Cal.
2012).
12 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
a.
The California state courts have not addressed the
substantive scope of the “nature of the work” exception.8 The
California Division of Labor Standards Enforcement
(“DLSE”), however, has issued several opinion letters
addressing when the “nature of the work” exception may
apply.9 “The DLSE’s opinion letters, while not controlling
upon the courts by reason of their authority, do constitute a
body of experience and informed judgment to which courts
and litigants may properly resort for guidance.” Brinker,
273 P.3d at 529 n.11 (internal quotation marks and citations
omitted). We look to them for guidance on what an employer
must show to invoke the exception, as well as examples
where DLSE has found that it is satisfied.10
8
There are, however, several state court decisions that address whether
the “nature of the work” exception can be decided on a class-wide basis
under California Code of Civil Procedure § 382; we discuss those cases
infra.
9
“The DLSE is the state agency empowered to enforce California’s
labor laws, including IWC wage orders.” Brinker, 273 P.3d at 529 n.11
(internal quotation marks and citations omitted).
10
USSA requests that we take judicial notice of certain documents,
including several DLSE Opinion Letters. “To the extent our opinion
references any of the materials, we grant [USSA’s] request[] for judicial
notice.” Campbell v. PricewaterhouseCoopers, LLP, 642 F.3d 820, 824
n.3 (9th Cir. 2011); see also Fed. R. Evid. 201(b) (allowing the court to
take judicial notice of facts that are “not subject to reasonable dispute”
because they “can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned”).
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 13
First, DLSE has emphasized that the “on-duty” meal
period is a “limited[] alternative” to the off-duty meal period
requirement. DLSE Opinion Letter 2009.06.09 at 8.
Critically, it is “not described or defined as a waiver of an
off-duty meal period,” id. (emphasis added), but rather as “a
type of meal period that can be lawfully provided only in
those circumstances in which the three express conditions set
forth in [the regulation] are satisfied.”11 Id. Thus,
[i]n determining whether ‘the nature of the
work’ prevents an employee from being
relieved of all duty, [DLSE] starts with the
premise that the general requirement for an
off-duty meal period is remedial in nature,
and any exception to that general requirement
must be narrowly construed, so as to avoid
frustrating the remedial purpose of the
regulation.
DLSE Opinion Letter 2002.09.04 at 2. The employer has the
burden to “establish[] the facts that would justify an on-duty
meal period.” Id. at 2–3; see also DLSE Opinion Letter
2009.06.09 at 7; DLSE Opinion Letter 1994.09.28 at 4 (“In
the view of the Division, the onus is on the employer to show
that the work involved prevents the employee from being
relieved of duty.”).
11
DLSE Opinion Letter 2009.06.09 concerned IWC Wage Order No. 9-
2001, subd. 11(C), Cal. Code Regs., tit. 8, § 11090, subd. 11(C), which
applies to the transportation industry. Subdivision 11(C) contains the
same three requirements for any on-duty meal period as Wage Order 4-
2001, subd. 11(A), cited in the text, supra at 11.
14 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
Second, we can characterize the instances in which DLSE
has found that the “nature of the work” exception applies into
two categories: (1) where the work has some particular,
external force that requires the employee to be on duty at all
times, and (2) where the employee is the sole employee of a
particular employer.12 For example, in its most recent
opinion letter, DLSE concluded that employees who transport
hazardous materials, and are required by federal regulation to
attend to their vehicles at all times, are covered by the “nature
of the work” exception. DLSE Opinion Letter 2009.06.09 at
8. It emphasized the narrow scope of its conclusion,
however, explaining,
[W]e do not comment upon the application of
the on-duty meal period requirements for any
12
We do not—and cannot—hold that these are the only circumstances
under which the “nature of the work” exception may apply. To the
contrary, DLSE has laid out the following non-exhaustive factors that
should be considered when deciding whether the “nature of the work”
exception applies to a specific job:
(1) [T]he type of work, (2) the availability of other
employees to provide relief to an employee during a
meal period, (3) the potential consequences to the
employer if the employee is relieved of all duty, (4) the
ability of the employer to anticipate and mitigate these
consequences such as by scheduling the work in a
manner that would allow the employee to take an off-
duty meal period, and (5) whether the work product or
process will be destroyed or damaged by relieving the
employee of all duty.
DLSE Opinion Letter 2009.06.09 at 7. Thus, we make this observation
solely to note the broad types of positions that DLSE has determined
qualify for the “nature of the work” exception, as part of our limited
inquiry into the merits of the plaintiffs’ claims.
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 15
period of time during which the driver is not
engaged in activity that is regulated by the
referenced federal regulations . . . . It may
indeed be the case that drivers may be
provided an off-duty meal period during these
times even though they are otherwise
prevented by the nature of their work from
taking a meal period during times in which
they are engaged in activity otherwise
governed by the [federal regulations].
Id. DLSE further allowed for the possibility that another
employee might be able to cover the driver, explaining.
Also, the nature of the work element may not
be satisfied under circumstances where the
employer may have another qualified
representative reasonably available to perform
the attending duties required under [federal
regulation]. For instance, drivers who
transport fuel in and around the Bay Area may
likely park their vehicle at one of the
Company’s yards and leave such vehicle
unattended in compliance with federal law in
order to take an off-duty meal period. Such a
driver would not be entitled to an on-duty
meal period if the nature of his or her work
did not prevent the driver from being relieved
of all duty.
16 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
Id.13 In another opinion letter, DLSE noted that the “nature
of the work” exception might apply where the position
involves “the continuous operation of machinery requiring
monitoring” that is “essential to the business of the
employer.” DLSE Opinion Letter 1994.09.28 at 2.
In addition to these jobs, which by their nature require the
employee to be present at all times, DLSE has also found that
the “nature of the work” exception would apply to an
“isolated” gas station “in which only a single employee is
present,” but only if there was not “another employee
employed at the worksite.” DLSE Opinion Letter 2003.11.03
at 3; see also DLSE Opinion Letter 1994.09.28 (noting that
“the nature of the work” exception might apply where “the
employee is the only person employed in the establishment
and closing the business would work an undue hardship on
the employer”). Cf. DLSE Opinion Letter 2002.09.04 at 2–3
13
In the same opinion letter, DLSE also considered whether the truck
drivers could be required to “sign a blanket agreement for on-duty meal
periods.” Id. at 3. DLSE concluded that they could, but emphasized that
“each” on-duty meal period covered by the agreement must independently
qualify for the “nature of the work” exception:
It is the opinion of the Division that the Company and
employee may enter into a single agreement so long as
the conditions necessary to establish that the nature of
the employee’s work prevents the employee from being
relieved of all duty are met for each applicable on-duty
meal period taken.
Id. at 9 (emphasis added). Although not dispositive of any issue, DLSE’s
response supports the plaintiffs’ argument that it is unlawful for USSA to
impose a uniform policy of requiring “on-duty” meal periods, given
USSA’s own admission that, “beyond the variation in general duties by
post,” the guards’ day-to-day responsibilities also vary.
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 17
(concluding that the “nature of the work” exception does not
apply to late-night shift managers at fast-food restaurants, in
part because other employees are on duty and could cover for
the manager).14
b.
With this understanding of the “nature of the work”
defense, we turn to two recent state court decisions that guide
our analysis of Rule 23(a)(2)’s commonality requirement.
First, in Brinker, the California Supreme Court clarified
multiple “issues of significance to class actions generally and
to meal and rest break class actions in particular.” 273 P.3d
at 520. Of particular importance here, the court in Brinker
held that the California Court of Appeal had erred in
reversing the superior court’s certification of a class of
14
USSA argues that the district court applied the wrong legal standard
because it initially cited one of the DLSE opinion letters for the
proposition that “an off-duty meal period must be provided unless . . . the
nature of the work makes it virtually impossible for the employer to
provide the employee with an off-duty meal period.” DLSE Opinion
Letter 2002.09.04 at 2. As USSA correctly argues, DLSE has rejected the
“virtually impossible” standard as “narrow, imprecise, and arbitrary.”
DLSE Opinion Letter 2009.06.09 at 7.
We disagree that the district court applied the wrong legal standard.
As an initial matter, the district court did not “apply” any legal standard;
it merely looked to the DLSE opinion letters as part of its preliminary
inquiry into the merits, to determine whether class certification was
appropriate. Furthermore, the district court clarified its initial ruling when
it denied USSA’s motion for reconsideration, explaining that its previous
citation to the “virtually impossible” standard “was not determinative in
[its] analysis,” and that the “analytical role” it played “was merely to
express that the showing necessary to establish the ‘nature of the work’
exception is a high one.” We are therefore satisfied that the district court
applied the correct legal standard.
18 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
plaintiffs who alleged that their employer uniformly denied
them rest breaks. Although the court’s analysis arose in the
context of a representative action under California Code of
Civil Procedure § 382, it also spoke to the liability that would
arise under such a scenario:
[T]he Court of Appeal concluded that because
rest breaks can be waived—as all parties
agree—“any showing on a class basis that
plaintiffs or other members of the proposed
class missed rest breaks or took shortened rest
breaks would not necessarily establish,
without further individualized proof, that
Brinker violated” the Labor Code and Wage
Order No. 5. This was error. An employer is
required to authorize and permit the amount
of rest break time called for under the wage
order for its industry. If it does not—if, for
example, it adopts a uniform policy
authorizing and permitting only one rest
break for employees working a seven-hour
shift when two are required—it has violated
the wage order and is liable. . . .
. . . The theory of liability—that Brinker has a
uniform policy, and that that policy, measured
against wage order requirements, allegedly
violates the law—is by its nature a common
question eminently suited for class treatment.
Id. at 531–32 (emphasis added).
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 19
The California Court of Appeal subsequently interpreted
and applied Brinker in a case with strikingly similar facts to
the case before us. See Faulkinbury v. Boyd & Assocs.,
216 Cal. App. 4th 220 (2013). In Faulkinbury, the putative
class was made up of private security guards whose employer
“had a uniform policy of requiring all security guard
employees to take paid, on-duty meal breaks and to sign an
agreement by which the employee agreed” to such on-duty
meal breaks. Id. at 233. The court of appeal concluded that
the employee’s liability turned on “the issue [of] whether
Boyd’s policy requiring all security guard employees to sign
blanket waivers of off-duty meal breaks is lawful,” id. at 234,
explaining,
Brinker leads us . . . to conclude Boyd would
be liable upon a determination that Boyd’s
uniform on-duty meal break policy was
unlawful . . . . [T]he employer’s liability
arises by adopting a uniform policy that
violates the wage and hour laws. Whether or
not the employee was able to take the required
break goes to damages . . . .
20 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
Id. at 235 (emphasis added).15 The court of appeal explicitly
rejected the defendant’s argument that the “nature of the
work” exception applied, concluding that, “by requiring
blanket off-duty meal break waivers in advance from all
security guard employees, regardless of the working
conditions at a particular station,” the defendant itself “treated
the off-duty meal break issues on a classwide basis.” Id. at
234; see also Bradley v. Networkers Int’l, LLC, 150 Cal. Rptr.
3d 268, 284–85 (Cal. Ct. App. 2012), as modified on denial
of reh’g (Jan. 8, 2013) (“The lack of a meal/rest break policy
and the uniform failure to authorize such breaks are matters
of common proof.”), review denied (Mar. 20, 2013); Bufil v.
Dollar Fin. Grp., Inc., 76 Cal. Rptr. 3d 804, 811 (Cal. Ct.
App. 2008) (concluding that the plaintiff’s theory that “two
circumstances—single employee on duty or providing
training—do not come within the ‘nature of the work’
exception” was “a legal question” that could be resolved on
15
The court of appeal had initially affirmed an order denying class
certification, holding that “individual issues of fact [would] predominate,”
because “the ability of each of [the] security guard employees to take an
off-duty meal break depended on individual issues,” such as the specific
post to which the employee was assigned, as well as “whether under the
specific circumstances each employee could be relieved to take a meal
break.” Faulkinbury v. Boyd & Assocs. (Faulkinbury I), 112 Cal. Rptr. 3d
72, 87 (Cal. Ct. App. 2010), review granted and opinion superseded,
240 P.3d 1215 (Cal. 2010). However, the California Supreme Court
subsequently ordered the court of appeal to “vacate its decision and to
reconsider the cause” in light of Brinker, 273 P.3d 513. Faulkinbury v.
Boyd & Associates, Inc., 279 P.3d 1019 (Cal. 2012). Upon
reconsideration, the court of appeal reversed the superior court’s denial of
class certification, as discussed above. The California Supreme Court
denied a petition for review and request for de-publication on July 24,
2013. See California Courts, Appellate Courts Case Information,
http://appellatecases.courtinfo.ca.gov/search/case/disposition.cfm?dist=
0&doc_id=2048870&doc_no=S211515 (last visited September 2, 2013).
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 21
a class-wide basis). Of course, we are not bound by the
California Court of Appeal’s determination under California
law that the sub-class certified by the district court is
amenable to class-wide treatment. See Cal. Civ. Proc. Code
§ 382. However, insofar as Faulkinbury interprets Brinker’s
holding regarding the potential liability of an employer under
California law, it is directly on point for our analysis.
2.
In light of these state authorities, we conclude that the
plaintiffs’ claims will yield a common answer that is “apt to
drive the resolution of the litigation,” as required by Rule
23(a)(2). Wal-Mart, 131 S. Ct. at 2551. First, as the district
court explained, the DLSE letters make clear that “the
showing necessary to establish the ‘nature of the work’
exception is a high one.” In order to make such a showing,
USSA had to demonstrate not just that its employees’ duties
varied, but that they varied to an extent that some posts would
qualify for the “nature of the work” exception, while others
would not. It failed to do so. Indeed, USSA’s sole
explanation for why it requires on-duty meal periods is that
its guards are staffed at single-guard locations. It does not
argue that any particular posts would qualify for the “nature
of the work” exception absent the single-guard staffing
model. In fact, when asked if he could think of “examples”
where “the nature of the work requires an on-duty meal
break,” Flury testified that he could not.16 Thus, the crux of
the issue is that the class members’ duties do not allow for a
16
The only example of a site that “requires[] an on-duty meal break” that
Flury could identify was a union site, since USSA “follow[s] some of the[]
union rules just to parallel them.”
22 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
meal break solely because no other guards are available to
cover for them during their meal periods.
Consider, for example, the illustrative list of duties that
USSA has provided to demonstrate the variety of its
employees duties:
[T]he duties performed by security guards
include patrolling parking lots; checking
receipts; signing in and out trucks; setting up
school parking lots and assisting with student
drop-offs and pick-ups; inspecting vehicles;
restraining unruly patients; escorting dead
bodies; checking the inventory, mileage, and
temperature of trucks; working undercover to
catch shoplifters; monitoring psychiatric
patients; checking in employees and
answering phones at a front desk; performing
surveillance; and enforcing hotel quiet hours.
These duties are undoubtedly distinct from one another, but
the only reason any of them “prevent” the employee from
taking a meal period is because USSA has chosen to adopt a
single-guard staffing model. See Cal. Code Regs., tit. 8,
§ 11040, subd. 11(A) (stating that an “on-duty” meal period
is permitted “only when the nature of the work prevents an
employee from being relieved of all duty” (emphasis
added)).17
17
In this way, the duties of USSA’s employees are distinct from, for
example, a truck driver who is required by federal regulation to attend to
his vehicle at all times, DLSE Opinion Letter 2009.06.09 at 7–8, or a
worker whose job involves the “continuous operation of machinery
requiring monitoring,” DLSE Opinion Letter 1994.09.28 at 2.
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 23
On this basis, we conclude that the merits inquiry will
turn on whether USSA is permitted to adopt a single-guard
staffing model that does not allow for off-duty meal
periods—namely, whether it can invoke a “nature of the
work” defense on a class-wide basis, where the need for on-
duty meal periods results from its own staffing decisions.
Such an inquiry is permissible under Brinker and
Faulkinbury; the latter clarified that an employer may be held
liable under state law “upon a determination that [its] uniform
on-duty meal break policy [is] unlawful,” with the “nature of
the work” defense being relevant only to damages.
Faulkinbury, 216 Cal. App. 4th at 235. Thus, the legality of
USSA’s policy is a “significant question of law,” Mazza,
666 F.3d at 589, that is “apt to drive the resolution of the
litigation” in this case, Wal-Mart, 131 S. Ct. at 2551. We
therefore hold that the district court did not abuse its
discretion in concluding that Rule 23(a)(2) was satisfied.
B. Rule 23(b)(3)
We next turn to Rule 23(b)(3), which asks if “the
questions of law or fact common to class members
predominate over any questions affecting only individual
members.” Fed. R. Civ. P. 23(b)(3) (emphasis added).
Although there may be “some variation” among individual
plaintiffs’ claims, Local Joint Exec. Bd. of
Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc.,
244 F.3d 1152, 1163 (9th Cir. 2001) (emphasis added), “Rule
23(b)(3)’s predominance criterion is even more demanding
than Rule 23(a),” Comcast Corp. v. Behrend, 133 S. Ct.
1426, 1432 (2013). “A principal purpose behind Rule 23
class actions is to promote efficiency and economy of
litigation.” In re Wells Fargo, 571 F.3d at 958 (internal
quotation marks omitted). Thus, “[t]he predominance
24 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
analysis under Rule 23(b)(3) focuses on ‘the relationship
between the common and individual issues’ in the case,” and
tests whether the proposed class is “‘sufficiently cohesive to
warrant adjudication by representation.’” Wang v. Chinese
Daily News, Inc., 08-55483, 2013 WL 4712728 at * 5 (9th
Cir. Sept. 3, 2013) (quoting Hanlon, 150 F.3d at 1022). Here,
we conclude that it is.
1.
First, our analysis of the “nature of the work” exception,
supra, drives our conclusion that Rule 23(b)(3) is satisfied
here. Cf. Erica P. John Fund, Inc. v. Halliburton Co.,
131 S. Ct. 2179, 2184 (2011) (“Considering whether
‘questions of law or fact common to class members
predominate’ begins, of course, with the elements of the
underlying cause of action.”). We have concluded that the
“nature of the work” defense can, and will, be applied on a
class-wide basis in this case. We offer no opinion on whether
USSA’s “single-guard” staffing model will qualify for the
“nature of the work” exception.18 But “Rule 23(b)(3) requires
[only] a showing that questions common to the class
18
Indeed, the DLSE opinion letters do not provide a definite metric for
deciding in what circumstances a lone employee may be permitted to take
an on-duty meal break—for example, it is not clear if an employee must
be (1) the sole employee on duty at a particular time, (2) the sole employee
staffed at a particular location, or (3) the sole employee working for the
employer in order to qualify for the “nature of the work” exception. Cf.
DLSE Opinion Letter 2003.11.03 (concluding that the “nature of the
work” exception would apply to an “isolated” gas station with “a single
employee,” but not if “another employee [is] employed at the worksite”);
DLSE Opinion Letter 1994.09.28 (explaining that the “nature of the work”
exception might apply where “the employee is the only person employed
in the establishment and closing the business would work an undue
hardship on the employer”).
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 25
predominate, not that those questions will be answered, on
the merits, in favor of the class.” Amgen Inc., 133 S. Ct. at
1191 (emphasis removed); see also United Steel, Paper &
Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv.
Workers Int’l Union, AFL-CIO, CLC v. ConocoPhillips Co.,
593 F.3d 802, 808 (9th Cir. 2010) (holding that the district
court “abused its discretion by declining certification based
on the possibility that plaintiffs would not prevail on the
merits on their ‘on duty’ theory,” where the plaintiffs’ theory
was that certain restrictions on their meal breaks made the
meals “on duty” under California law (emphasis removed)).
And where, as here, “there are no relevant distinctions
between the worksites,” we agree with the district court that
“the ‘nature of the work’ inquiry would be a common one,”
focused on the legality of a single-guard staffing model,
“rather than a site-by-site” inquiry. Viewing the meal break
sub-class’ claims in this manner undercuts USSA’s primary
argument that individual issues will predominate due to its
need to present an individual “nature of the work” defense for
each plaintiff and each worksite.
2.
We are mindful that it is an abuse of discretion for the
district court to rely on uniform policies “to the near
exclusion of other relevant factors touching on
predominance.” In re Wells Fargo, 571 F.3d at 955; see also
Wang, 2013 WL 4712728 at *5; Vinole v. Countrywide Home
Loans, Inc., 571 F.3d 935, 946 (9th Cir. 2009). Thus, in In re
Wells Fargo, we held that the district court had abused its
discretion when it certified a class of home mortgage
consultants (“HMCs”), all of whom Wells Fargo had
classified as “exempt from overtime laws,” under Rule
23(b)(3). 571 F.3d at 955. The district court in In re Wells
26 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
Fargo had found that it would need to analyze “the job
experiences of the individual employees, including the
amount of time worked by each HMC, how they spend their
time, where they primarily work, and their levels of
compensation,” but nevertheless decided that the uniform
exemption policy “weigh[ed] heavily in favor of class
certification.” Id. at 956. We held that it was an abuse of
discretion for the district court to rely on the “blanket
exemption policy,” which “[did] nothing to facilitate common
proof,” since the court would still have to consider how
“individual employees actually spent their time” in order to
decide if they were exempt from overtime requirements. Id.
at 959 (emphasis added); see also id. at 957 (explaining that
a district court abuses its discretion when it makes “a clear
error of judgment in placing too much weight on [a] single
factor vis-a-vis the individual issues”). We reached the same
conclusion in two other cases that required the district court
to consider whether individual employees were properly
classified as “exempt” employees. See Wang, 2013 WL
4712728 at *5 (noting that “the district court’s conclusion
that common questions predominate in this case rested on the
fact, considered largely in isolation, that plaintiffs are
challenging CDN’s uniform policy of classifying all reporters
and account executives as exempt employees,” and vacating
the district court’s finding of predominance under Rule
23(b)(3) (emphasis added)); Vinole, 571 F.3d at 945
(affirming the district court’s denial of class certification
where the court’s exemption analysis would be “fact-
intensive” and require an “individualized analysis of the way
each employee actually spends his or her time”).
This case is not like In re Wells Fargo, Wang, or Vinole.
First, unlike in those cases, federal or state exemption
classifications—which may sometimes be fact-intensive—are
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 27
not at issue here. Cf. In re Wells Fargo, 571 F.3d at 959(explaining that the “federal outside salesperson exemption”
often “requires ‘a fact-intensive inquiry into each potential
plaintiff’s employment situation’” (quoting the district
court)); Vinole, 571 F.3d at 945 (explaining that under
California law, “a court evaluating the applicability of the
outside salesperson exemption must conduct an
individualized analysis of the way each employee actually
spends his or her time,” and the court’s “analysis of the FLSA
exemption” is likewise “a fact-intensive inquiry” (emphasis
added)).
Second, unlike in Wells Fargo and Vinole, the district
court did not rely on the existence of USSA’s uniform on-
duty meal period policy to the exclusion of other factors. To
the contrary, the district court found that nearly all of the
evidence in the record—including Flury’s testimony about
USSA’s actual business practices, as well as the declarations
of USSA’s employees—supports a finding that common
questions would predominate. For example, the court found
that Flury’s testimony described “more than a policy,” since
he also explained how USSA’s “policies and practices are
implemented on the ground.” In considering the employee
declarations, the court found that “[n]one of these
declarations establishes that the declarant was categorically
given off-duty meal breaks.” And, “[g]iven the uniform
policy of requiring . . . the on-duty meal break agreement,”
the court further found that, “in the vast majority of cases,
this policy was implemented to require [that] on-duty meal
breaks be taken.” In light of these findings, the district court
properly concluded that the employee declarations “did not
indicate a lack of predominance.”
28 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
USSA nevertheless challenges the district court’s factual
findings, particularly with regard to the employee
declarations. USSA argues that it staffs its guards in groups
“ranging from one guard per shift to up to 30 guards per shift
and practically everything in between.” It further argues that
“at many locations, ‘off-duty’ meal periods were provided.”
But these arguments directly contradict the statements that
Flury made during his deposition. Flury testified to three
critical facts. First, he initially testified that 99.9% of
employees work at single guard posts (he later changed his
answer to say that “a large majority” of employees work at
such posts).19 Second, Flury testified that no single guard
post allowed for a lunch break. (“I don’t know of any single
post that has a lunch break as part of the program.”). Third,
Flury made clear that such “on-duty” meal periods are
required as a matter of policy—not necessity—explaining
that one of the “requirements as signed to by the wavier” was
for the guards to eat lunch at their posts. In fact, when asked
if one USSA employee could relieve another for a meal
period, Flury responded, “[b]ut then [the employee] wouldn’t
be doing his job, would he? No.”20
We agree with the district court that although USSA “may
wish to distance itself from Flury’s statements, his admissions
were material and [are] properly before us.” Furthermore, to
the extent the employee declarations submitted by USSA are
19
We note that, although Flury changed some of his answers by errata,
he did not change his statement that USSA’s business is “all made up of
single posts.”
20
As discussed supra, Flury stated in his deposition that the on-duty
meal period was part of the “nature of the business,” but when asked for
an example where “the nature of the work requires an on-duty meal
break,” he could not think of one, other than a union site.
ABDULLAH V. U.S. SECURITY ASSOCIATES, INC. 29
not entirely consistent with Flury’s testimony, we defer to the
district court’s decision to weigh his testimony over the
employee declarations. We cannot say, in light of all the
evidence, that the district court’s findings of fact were
“illogical,” “implausible,” or “without support in inferences
that may be drawn from the facts in the record.” See Hinkson,
585 F.3d at 1262. The district court here did not abuse its
discretion by finding, on the record before it, that common
issues of law or fact would predominate.
3.
Finally, USSA argues that individual issues will
predominate because USSA’s “time records will not
dispositively show which meal periods were ‘off duty’ meal
periods” for any given employee. As a factual matter,
however, USSA’s argument is again belied by the record.
Many of the employee declarations describe keeping records
of their time worked. And, as the district court noted, “given
Flury’s admission that those staffed at single guard posts
were required to take on-duty meals, Defendant’s records of
each employee’s clock-in and clock-out times, how much he
was paid, and whether he was staffed at a single guard post,
can be used to extrapolate whether his meal break was on- or
off-duty.” For example, Flury testified that “for on-duty meal
breaks, the sign-in sheets would just have a start time and end
time.” In light of these records, it would not be difficult to
determine USSA’s liability to individual plaintiffs, nor would
it be overly-burdensome to calculate damages.
For the foregoing reasons, we conclude that the plaintiffs’
claims “will prevail or fail in unison,” as required by Rule
23(b)(3). See Amgen Inc., 133 S. Ct. at 1191. The district
30 ABDULLAH V. U.S. SECURITY ASSOCIATES, INC.
court did not abuse its discretion in concluding that Rule
23(b)(3) was satisfied.
IV. CONCLUSION
In sum, we conclude that the district court did not abuse
its discretion by certifying the meal break sub-class.
AFFIRMED.